Abstract

[Excerpt] "Franz Kafka’s novel The Trial is firmly entrenched in the modern consciousness as an exemplar of judicial indifference to the most basic rights of citizens to understand the nature of criminal proceedings directed against them. Yet, Kafka was not mentioned in an American judicial opinion until forty years after his death in 1924. Since the mid 1970s, however, Kafka’s name has appeared in more than 400 opinions written by American state and federal judges. Judges have used Kafka to criticize bureaucratic absurdity, unfair tribunals of all sorts, and even their own colleagues on the other side of an appellate decision, and to empathize with litigants. Some judges referring to Kafka have taken great pains to explain their understanding of Kafka and the application of his fiction to the case being decided, while others have exercised considerable creativity, linking Kafka to other literary figures such as George Orwell, using Kafka as a character in their opinions, or seeing the facts of a particular case as belonging in Kafka’s fictional world. Kafka’s name has such power that at least four lines of cases have coalesced around particularly well-phrased references to Kafka."